ture and for destruction of the property, and claimant appeals. Reversed. See, also, 1 F(2d) 500, 1001. John W. Crolly and Benjamin M. Golder, both of Philadelphia, Pa., for appellant. George W. Coles, U. S. Atty., and Francis B. Biddle, Asst. U. S. Atty., both of Philadelphia, Pa. Before BUFFINGTON and WOOLLEY, Circuit Judges, and MORRIS, District Judge. WOOLLEY, Circuit Judge. The DaeuferLieberman Brewing Company held a permit. from the Bureau of Internal Revenue to operate a brewery in the city of Allentown, Pa. While it was operating under the permit, Gough, a prohibition agent, together with another agent, took samples of beer from barrels on the premises of the brewing company. State Policeman Austin and other state officers made purchases of beer at the brewery. All the samples had an alcoholic content of more than one-half of 1 per cent. by volume. These facts were shown in affidavits made by Gough and Austin, and a state search warrant was issued to the captain of the Pennsylvania state police on affidavit made by one Stout, alleging probable cause. Thereupon the state police seized the brewery as though by execution process. A federal search warrant was then issued to Connelly, general prohibition agent, on an affidavit by Gough, setting forth the nature of the samples taken from the brewery. Under this warrant a like seizure of the property was made. The state police then withdrew and delivered possession to the federal agents. Immediately afterward the United States filed a libel covering the beer, raw materials, and machinery of the brewery. The libel, issuing under section 25, tit. 2, of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 101381⁄2m), and under sections 3340 and 3353 of the Revised Statutes (Comp. St. §§ 6146, 6160), alleged unlawful possession by the respondent of the property described therein, and that the beer was intended for unlawful sale, and the machinery was intended for the manufacture of beer to be sold unlawfully. Motions to dismiss the libel and quash the federal search warrant were denied. The court, however, set aside the return of the search warrant as showing an illegal service and execution, and ordered that the seized property be given back to the brewery upon its filing a bond conditioned upon the return of the property to the marshal in the event of judgment against it in the libel proceedings. Thereupon the brewing company gave a bond and regained its property. On issue joined, the case was tried to the court without a jury. The court, by its decree, found that the property described therein was designed for the manufacture of liquor intended for use in violation of title 2 of the National Prohibition Act, and ordered the marshal to destroy it. The respondent appealed, and has raised several questions of little merit, which we shall dispose of briefly before coming to one of serious con cern. [1,2] The first question is whether the court erred in refusing the respondent's motion to quash the federal search warrant, urged on the ground that the warrant was invalid because based on insufficient evidence of probable cause. We think the evidence was sufficient, and hold that the permit under which the brewing company was operating did not protect it from search under a valid search warrant. Lipschutz v. Quigley (D. C.) 287 F. 395. [3] The next question is raised on the respondent's contention that the search warrant was invalid because it was addressed to, and executed by, a prohibition agent, and that a prohibition agent is not a civil "officer" within the meaning of article 2, § 2, of the Constitution of the United States and of the provision of the Espionage Act (40 Stat. 217), incorporated in the Prohibition Act providing for the enforcement of prohibition laws by "civil officers." This question is resolved against the respondent on the ruling by this court in Altshuler v. United States (C. C. A.) 3 F. (2d) 791. [4] The third assignment of error charges that the seizure was unlawful because made of property already seized by state. officials and therefore in custodia legis. A question of this kind might arise in a conflict between state and federal officials; but in this case there was no such conflict. While state officers made the first seizure, they voluntarily surrendered property to federal officers, and it was entirely out of the possession of the state officers when the libel was filed. The fourth assignment of error was not argued, being in substance the same as the fifth, which we shall consider last. The sixth assignment charges error to the court in admitting testimony of alleged illegal sales prior to the times averred in the libel. For the reasons which the learned trial judge indicated, we find no error here. 8 F.(2d) 1 [5] The seventh assignment relates to of the libel, the court issued attachments the proceeding by libel, followed in this and for the property. These attachments were like cases, and charges that the proceeding not served, we understand, because before is invalid because the National Prohibition the property could be attached it was releasAct does not provide for it. True, section ed on the brewing company giving bond for 25 of the National Prohibition Act does not its return and submission to any order the specifically prescribe that its provisions in court might make. respect to forfeitures shall be enforced by libel proceedings. Yet such proceedings have long been used to enforce federal statutes where property is sought to be forfeited or destroyed. The fact that the National Prohibition Act does not prescribe the proceeding by which to do the thing which the act requires shall be done does not invalidate the proceeding by libel when that proceeding is available and appropriate to reach and dispose of the offending res. [6] The eighth assignment charges error to the court for including in its decree the forfeiture of various properties as to which it alleges there was no evidence of improper or unlawful use, having reference particularly to the machinery and utensils of the brewery. The question raised by this assignment is answered by section 25 of the National Prohibition Act, which provides that property used or intended to be used in violation of the act shall be destroyed. The question whether the property here condemned was designed for such use was a question of fact, in the review of which we have found nothing which persuades us that the court was wrong. [7] Lastly, the question raised by the fifth assignment, as stated by the respondent in the questions involved, is in these words: "Whether the libel proceeding can be sustained in view of the fact that it was based upon seizure made under a search warrant, return to which search warrant was afterwards set aside by the District Court of the United States." This question is not satisfactorily stated. As we understand it, it means that: Having found the execution of the search warrant unlawful, did the court have such possession of the property as would give it jurisdiction of a case involving its forfeiture? What the court did, shortly stated, was this: It dismissed the motion to quash the search warrant; therefore the search warrant stands. It granted the motion to set aside the service and execution of the warrant. Thus it held that the manner in which the warrant was executed was improper and unlawful and the seizure therefore void. It denied the motion to dismiss the libel; therefore the libel stands. After the filing The court sustained the libel on the ground that the defect in the service of the valid search warrant cannot prevent the government from libeling liquor illegally possessed by the respondent, that questions raised on the issuance and execution of a search warrant have nothing to do with the libel, and that the possession of the property, being complete in the national government by transfer from officers of the state government before the libel was filed, that possession sustained the libel proceeding subsequently instituted. The basic principle of law, as stated by the government, on which this and similar libel proceedings stand, is: "A seizure of the res must precede a libel for its forfeiture. Jurisdiction is acquired by the seizure itself. That (says the government) is exactly what happened in this case. The government seized the property and then libeled it." The government did seize the brewery on a valid search warrant, but, according to the decision of the trial court, which was entirely sound, it seized it in an unlawful way. Instead of returning the property so unlawfully seized to its owner, the government retained it, and on its possession, thus acquired and retained, it asserts that it has the antecedent possession requisite to a valid proceeding by libel. Further narrowed, the question is whether possession by the government, unlawfully acquired, will sustain libel proceedings. In addressing ourselves to this question, we have not confused the function of a search warrant with the function of a libel (In re Kupferberg [D. C.] 284 F. 914, Mellet & Nichter Brewing Co., Inc., v. United States [D. C.] 296 F. 765), in respect to which counsel have cautioned us. difference is clear. Nor have we confused unlawful possession of property by the government with unlawful possession by the respondent. One is a jurisdictional matter; the other a violation of substantive law. The Proceedings by libel, like those in question, are proceedings in rem. As early as the case of The Brig Ann, 9 Cranch. 289, 3 L. Ed. 734, the Supreme Court, speaking through Mr. Justice Story, held that, "in order to institute and perfect proceedings in rem, it is necessary that the thing should be actually or constructively within the reach of the court. It follows that, before judicial cognizance can attach upon a forfeiture in rem, under the statute, there must be a seizure; for until seizure, it is impossible to ascertain what is the competent forum. And, if so, it must be a good subsisting seizure at the time when the libel or information is filed and allowed." Therefore, "where property is seized and libeled, as forfeited to the government," the same court said, in Gelston v. Hoyt, 3 Wheat. 246, 4 L. Ed. 381, "the sole object of the suit is to ascertain whether the seizure be rightful, and the forfeiture incurred or not." See Dobbins Distillery v. United States, 96 U. S. 395, 396, 24 L. Ed. 637. In the case at bar, the learned trial court held that the seizure was not "rightful." Accordingly, it vacated the return of the warrant under which the seizure was made. It therefore decided adversely to the government one of the two issues raised and to be tried by a libel in rem; that is, it decided the issue, rightful seizure, which, technically and necessarily, precedes the decision of the other-whether a forfeiture was incurred. As it appears on the record of this case that the seizure of the respondent's property was unlawful, it follows that the government's possession was unlawful, and that its unlawful possession of the property cannot validly sustain a proceeding instituted for its forfeiture and destruction. On this ground alone we are constrained to reverse the decree of the District Court. On Petition for Rehearing. PER CURIAM. [8] The United States, by its petition for rehearing, has called our attention to what is without doubt a misstatement of fact in the aforegoing opinion. Addressing ourselves to the character of the government's possession of the property which first it seized and then libeled, we said: "After the filing of the libel, the court issued attachments for the property." That was right. Continuing, we said: "These attachments were not served, we understand, because before the property could be attached it was released on the brewing company giving bond for its return and submission to any order the court might make." That was wrong, for the record shows that the libel was filed in November, that the attachments issued and were returned in December, and that the defendant's property bond was given in February. Even so, this difference in the facts in no sense affects our conclusion, based, as it was, upon the unlawful character of the government's possession of the res at the time it filed the libel. Attachment following the libel did not confer upon the government the antecedent possession of the res which was requisite to instituting and maintaining the libel proceeding. Nor did the attachment after libel cure the government's unlawful possession acquired before libel by the unlawful execution of the federal search warrant. Possession of the res as affecting the jurisdiction of the court in' the libel proceeding was the possession which the government had when it filed the libel. Concededly, that possession was unlawful. Yet the government, by the libel, sought the forfeiture of property it had unlawfully seized and then unlawfully held. The point of our decision is, under authority of The Brig Ann, Gelston v. Hoyt, and Dobbins Distillery v. United States, supra, that cannot be done. The petition is denied. 8 F.(2d) 5 E. I. DU PONT DE NEMOURS & CO. v. WHITE. (Circuit Court of Appeals, Third Circuit. September 29, 1925.) No. 3191. 1. Master and servant 270 (8)-Evidence of similar injuries to others under similar conditions held competent. In an action by an employee for injury alleged to have been caused by poisonous gases, negligently allowed by defendant to escape into the rooms where plaintiff worked, testimony of other employees, who worked in the same rooms, that the gases had a similar effect on them, was competent; it being shown that they were working under substantially the same conditions. 2. Evidence 558(7)-Physician expert may not be impeached by medical works on which he has not relied. A physician, testifying from his own ex perience, as an expert, may not be impeached by medical works on which he has not relied. 3. Courts 348-State rules of evidence govern in federal courts, in absence of federal rule. The federal courts are governed by the rules of evidence, of the state of which they are administering the law, unless there is a federal rule to the contrary. In Error to the District Court of the United States for the District of New Jersey; Charles F. Lynch, Judge. Action at law by Paul White against E. I. du Pont de Nemours & Co. Judgment for plaintiff, and defendant brings error. Reversed, and new trial granted. Edward L. Katzenbach (of Katzenbach & Hunt), of Trenton, N. J., for plaintiff in error. Nathan Rabinowitz, of Paterson, N. J., for defendant in error. 'effort to impeach him, whether or not he agreed with certain medical works on which he had not relied as authority for his testimony. We do not think the court erred in refusing to direct a verdict for defendant. Under the pleadings and evidence, the questions of negligence, proximate cause and assumption of risk were, with proper instructions from the court, clearly for the jury. [1] The plaintiff called three witnesses, Joseph Dedino, Isaac Belton, and George Castellano, who worked in the same rooms in which plaintiff worked. According to their testimony, the gases in these rooms produced practically the same effect on them as on him. Was their testimony admissible? In evidencing the quality of gas, such as phosgene and chlorine (to which the plaintiff alleges he was subjected by the negligence of the defendant), by instances of its effects upon others who worked in and inhaled it, the natural and logical limitation is that the evidential instances should have occurred under substantially the same cirattributed to the influence of some other ele-` cumstances; otherwise the ill effects might be ment introduced by the differing circumstances. While in the use of this mode of proof unfair surprise and confusion of issues inevitably arise and often serve to exclude the evidence, yet the almost universal attitude of courts at the present time is to admit such evidence, subject to the limitation that the evidential instances took place under conditions substantially similar to the one in issue. Greenleaf on Evidence (16th Ed.) vol. 1, § 14v; 22 Corpus Juris, § 840. In the leading case of Darling v. Westmoreland, 52 N. H. 401, 13 Am. Rep. 55, after reviewing and carefully considering prac Before BUFFINGTON, WOOLLEY, and tically all the authorities, Judge Doe reachDAVIS, Circuit Judges. DAVIS, Circuit Judge. Paul White, an employee of the Du Pont Company, sued it for failure to take reasonable care and precaution to prevent the escape of noxious and poisonous gases from pipes, receptacles, and devices in its factory, where he worked in the manufacture of chemicals and explosives at Lodi, N. J. The case was tried to the court and jury, and a verdict rendered for the plaintiff. Defendant has brought the case here on writ of error, and alleges that the court erred: (1) In refusing to direct a verdict in its favor; (2) in admitting evidence of injuries suffered by other employees; and (3) in permitting defendant's expert witness to be asked, in an ed the conclusion above stated. The question reduces itself to one of fact: Were the conditions under which the plaintiff and the three witnesses worked substantially similar? We think that they were sufficiently so to come within the rule and to make the testimony admissible. Harry L. Gilchrist, a physician, and chief of the medical division of the Chemical Warfare Service in the War Department, testified as an expert for defendant on the effects of gas upon persons. He said that he was superintendent over all medical matters pertaining to gassed men in the World War; that there were 72,000 gassed casualties in our army, most of which he saw personally; that he was in command of the British hospitals from May until the middle of December, 1917, and saw, in addition, thousands of cases there and thousands of cases in "French gas hospitals"; that he had seen many men who had been gassed with chlorine and phosgene; and that there was no case on record in which it had been established that the inhalation of gas produced fibrosis, which plaintiff claims to have as a result of such inhalation. While Dr. Gilchrist was under cross-examination, counsel for plaintiff read from a book written by Dr. Winternitz of Yale statements opposed to the views of Dr. Gilchrist, and then asked him if he differed with Dr. Winternitz. Objection was made, but was overruled, and the witness was compelled to answer. Was this error? [2, 3] It is well settled in New Jersey that, when a physician testifies from his own experience as an expert, he may not be impeached by medical works upon which he has not relied as authority for his testimony. It is only when a witness refers to them for his own opinions that they are receivable in evidence, and then only for the purpose of contradicting him. New Jersey Zinc & Iron Co. v. Lehigh Zinc & Iron Co., 59 N. J. Law, 188, 35 A. 915; Kingsley v. D. L. & W. R. R. Co., 81 N. J. Law, 536, 538, 80 A. 327, 35 L. R. A. (N. S.) 338; State v. McRorie, 86 N. J. Law, 401, 92 A. 578; Western Union Telegraph Co. v. Ammann (C. C. A.) 296 F. 453. The federal court here was administering New Jersey law, and in doing so it must be governed by the New Jersey rules of evidence, unless there is a federal rule to the contrary. But the federal rule and the New Jersey rule are the same on this subject. Davis v. United States, 165 U. S. 373, 377, 16 S. Ct. 353, 40 L. Ed. 499. This testimony was therefore inadmissible and prejudicial. The vice of the question was that it involved the admission of hearsay evidence, without giving the adverse party an opportunity to cross-examine the author. The judgment is reversed, and a new trial granted. YUSEM v. UNITED STATES. (Circuit Court of Appeals, Third Circuit. September 19, 1925.) No. 3274. 1. Post office 49-Conviction for use of mails to defraud held not supported by evidence. An indictment charging that defendant knowingly and willfully devised a scheme to de fraud, to be carried out by use of the mails, based on the sending out by defendant through the mails, as a basis for future credit, of a financial statement of the firm of which he was a member, held not supported by evidence showing that the statement of liabilities was correct, that the statement of assets, while not accurate in all respects, was as to a number of items less favorable to the firm than warranted by the books and that in total it varied from the books not more than 1 per cent. 2. Post office 35-False representation must have been made with fraudulent intent. A false representation does not amount to fraud unless it be made with fraudulent intent. 3. Criminal law 562-Conviction must be reversed where evidence is consistent with innocence. Where all substantial evidence is as consistent with innocence as with guilt, it is the duty of an appellate court to reverse a judg ment of conviction. In Error to the District Court of the United States for the Eastern District of Pennsylvania; J. Whitaker Thompson, Judge. Criminal prosecution by the United States against David R. Yusem. Judgment of conviction (2 F.[2d] 163), and defendant brings Reversed, and new trial granted. Harry Shapiro, of Philadelphia, Pa., for plaintiff in error. error. George W. Coles, U. S. Atty., and L. Le Roy Deininger, Asst. U. S. Atty., both of Philadelphia, Pa. Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges. DAVIS, Circuit Judge. The writ of error in this case was taken to review a judgment of the District Court in which David R. Yusem, defendant, was sentenced to imprisonment for a term of eight months in the Mercer county jail at Trenton, N. J. He was indicted, tried, and convicted for having devised a scheme or artifice to defraud by means of false and fraudulent representations, and for having used the post office establishment for the purpose of executing the scheme, in violation of section 215 of the federal Criminal Code (Comp. St. § 10385). His brother, Maurice Yusem, with whom he was engaged in business under the name of Yusem Bros., was indicted and tried with him, but was acquitted by the direction of the court because it appeared that he had nothing to do with devising the scheme or using the mails. The scheme which the defendant is alleged to have devised was the submission through the United States mails of an alleged false and fraudulent statement prepared by him or |